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Protestor who breached covid restrictions to attend Brian Tamaki rally refused discharge without conviction

7 Jul 2023

| Author: Fiona Wu

Unsuccessful appeal against refusal to grant discharge of conviction – breach of Covid-19 Public Health Act 2020, s 26(1) – failure to comply with Covid-19 Public Health Response (Alert Level Requirements) Order (No 12) 2021 – whether NZBORA rights could be read into covid order – justified limitations on freedoms – no evidence that consequences of conviction are out proportion with gravity of offending – appeal dismissed

Steedman v Police [2023] NZHC 1617 per McQueen J.

The appellant, Tina Steedman, was convicted in July 2022 in the District Court of breaching the Covid-19 Public Health Response Act 2020 and the Covid-19 Public Health Response (Alert Level Requirements) Order (No 12) 2021. Steedman had travelled to Auckland from Taihape to attend public protests organised by Destiny Church founder Brian Tamaki on 16 October 2021.

The District Court concluded the matter could be dealt with by way of conviction and discharge.

Steedman appealed her conviction and sentence, essentially on the ground the judge made an error of law by not considering whether her rights under the NZ Bill of Rights Act 1990 (NZBORA) could be read into the order. On her submission, the covid order should permit travel for the purpose of political protest.

Steedman relied on ss 14, 16 and 28 of the NZBORA:

  • Section 14: Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form;
  • Section 16: Everyone has the right to freedom of peaceful assembly;
  • Section 28: An existing right or freedom shall not be held to be abrogated or restricted by reason only that the right or freedom is not included in the NZBORA or is included only in part.

McQueen J found s 14 was not engaged because Steedman was not prevented from protesting or expressing her views, only from travelling across alert level borders for the purpose of doing so. But the judge accepted s 16 was engaged and the order was inconsistent with that right.

Relying significantly on the authority of Borrowdale v Director-General of Health [2020] NZHC 2090, the High Court found the purpose of the order – the protection of public health – was a proportionate and balanced response to the pandemic at the time, and limitations on s 16 were justified.

It was not possible, therefore, to read into the order a proviso that criminal liability under s 26(1) of the Covid Act is excluded if a person who breaches an order does so for the propose of political protest.

In addition, McQueen J considered the consequences of a conviction were not out of all proportion to the gravity of the offending. While the offending was minor, Steedman provided no evidence as to the effect of a conviction upon her, and accepted her employment was not currently affected. Without more, the effect of the conviction could not be made out as being anything more than negligible.

Held: Appeal dismissed.

Steedman v The New Zealand Police [2023] NZHC 1617

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